Brain Stem Death and the Law

In one line

A technology forced the law to answer a question it had never had to ask, which is when a person has died.

In the wording a student can write in an exam: brain-stem death is defined by section 2(d) of the Transplantation of Human Organs and Tissues Act 1994 as the stage at which all functions of the brain-stem have permanently and irreversibly ceased, certified under section 3(6); section 2(e) then defines a deceased person as one in whom permanent disappearance of all evidence of life occurs by reason of brain-stem death or in a cardio-pulmonary sense, so that Indian law recognises two deaths; and the certification is entrusted to a Board of medical experts whose composition the section prescribes.

Why the law has this at all

For all of history before mechanical ventilation, death needed no legal definition because it was self-evident: breathing stopped, the heart stopped, and shortly afterwards everything else did. The cardio-pulmonary criterion was not a rule of law but a description of the only sequence that occurred.

Two technologies broke it apart.

Ventilation made it possible for a body's circulation and respiration to be maintained after the brain had irreversibly ceased to function. Something is happening in the bed, and it is not clear whether it is a person.

Transplantation made the answer urgent and consequential. Organs deteriorate rapidly once circulation stops, so viable organs come from a body that is still perfused. If death occurs only when the heart stops, most transplantation is impossible; if death can be declared while the heart beats, then the moment of declaration determines when a person may lawfully be opened.

That combination is why the definition sits in a transplantation statute rather than in a general law, and it is worth saying so in an answer: the definition of death in Indian law was written for the purposes of a particular technology, which is an unusual and slightly uncomfortable fact.

The provisions

Section 2(d): "brain-stem death" means the stage at which all functions of the brain-stem have permanently and irreversibly ceased and is so certified under sub-section (6) of section 3.

Read the definition carefully, because it has two limbs and students give only the first. Brain-stem death is a clinical state and a certified state: a body in which brain-stem function has irreversibly ceased is not, for the purposes of the Act, in a state of brain-stem death until it has been certified under section 3(6). The definition builds the procedure into the fact.

Section 2(e): a "deceased person" means a person in whom permanent disappearance of all evidence of life occurs, by reason of brain-stem death or in a cardio-pulmonary sense, at any time after live birth has taken place.